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Coal miner reinstated despite ‘scab’ comment

A BHP Coal operator has won his job back after being sacked for statements including ‘scabby’ and ‘you suck d*ck’, despite the Fair Work Commission (FWC) acknowledging the language breached the company’s code of conduct.

EMPLOYED at BHP Coal Pty Ltd’s Saraji mine for approximately 13 years, the operator’s employment was terminated for inappropriate workplace conduct in 2015.

During an exchange with another employee outside a crib hut, it was alleged the operator said words to the effect of ‘you suck d*ck’. The operators was also heard to say ‘it doesn’t matter, the scabby bugger will come and jump on it anyway’.

The operator expressed remorse for his comments, claiming the word ‘scabby’ was not directed at any particular person or used in an ‘industrial connotation’. However, based on the findings of its investigation, BHP Coal considered the operator’s actions to be in breach of the BHP Billiton Charter Values and the BHP Billiton Code of Business Conduct which outlines the company’s expected standards of employee behaviour.

In issuing the termination BHP Coal also noted that at the time of the verbal exchange, the employee was subject to a ‘Step 2 Written Warning’ for breaching the company’s Active Mine Procedure by intentionally allowing a light vehicle for entering an active mining area before all equipment was de-energised.

‘Direct communication’ could eliminate defence

While acknowledging that BHP Coal goes to ‘significant efforts to train their people regarding the standards of behaviour warranted in the workplace’, FWC Commissioner Paula Spencer said it is up to the employer to ‘communicate a zero tolerance attitude and policy to the use of the word ‘scab’ on site’.

“Direct communication to the workforce setting out the employer’s clear position would eliminate potentially any defence in relation to the use of this word and should clarify the nature of the language used on a mine site and the employer’s view of such in terms of the disciplinary responses,” Commissioner Spencer said.

“It is accepted that the Code of Conduct cannot deal with every specific scenario and that the BHP Code of Conduct does seek to support the appropriate standard of conduct and to manage the workplace by affording dignity and respect to all at their workplace. Such an approach must be supported.”

The commissioner also found BHP Coal relied on the 2014 Doevendans High Court case, also involving use of the word scab, in making its decision to terminate the operator, but did not sufficiently take into account differences between the two incidences.

“The consideration of the applicant’s termination was deficient, as the exchange was wrongly characterised as being similar to that in the Doevendans matter and that appropriate alternatives to termination, were not given real consideration,” Commissioner Spencer said.

The Commissioner ultimately concluded that the scab comment was an ‘off the cuff’ remark, made by the applicant, not specifically directed at any employee and certainly not in the industrial context as seen in the case law’.

The dismissal was found to be harsh and the operator was reinstated in his role, but in recognition of his breach of BHP’s Code of Conduct, Commissioner Spencer did not make an order to restore lost remuneration.

Click here to read the full decision.

AREEA campaigns for unfair dismissal reform

In AREEA’s experience, expanded rules under the Fair Work Act 2009 dealing with unfair dismissals has seen the FWC increasingly encroach on the decisions of experienced managers and thus encouraged increased claims even where a former employee appears to have breached company codes of conduct.

Unfair dismissal applications are now sitting at around 14,500 a year – more than double the annual average of 7,000 under previous workplace relations laws.

Furthermore, a 2016 AREEA survey of more than 100 resource employers found 65 per cent of respondents had received at least one unfair dismissal claim under the Fair Work Act since it came into effect and 87 per cent said the risk of having to reinstate an employee terminated for gross misconduct or serious safety breaches was a concern.

As the national resource industry employer group, AREEA is advocating for urgent changes to protect employers from unmeritorious claims, and the excessive costs and disruptions that come from defending them.

AREEA’s ongoing ‘5 Reforms Over 5 Years’ campaign is calling for unfair dismissal and general protections laws to be improved in the follow broad ways.

  1. Ensure unfair dismissal claims are assessed on whether there was a valid reason for termination and exclude genuine redundancy claims.
  2. Reduce the ability to claim unfair dismissal for breaches of workplace health and safety, physical violence, harassment or gross misconduct.
  3. Introduce higher fees for unfair dismissal applications and hearings, and place a high income threshold for both unfair dismissal and general protection claims.
  4. Reduce the six year timeframe to make a general protection claim, and introduce caps for compensation and a ‘genuine reasons’ defence.

Learn more about AREEA’s ‘5 Reforms Over 5 Years’ campaign at www.areea.com.au/backontrack or contact AREEA’s policy team on 1800 627 771 to discuss how you can get involved in advocacy activities.

For advice and assistance in undertaking workplace investigations, or responding to an unfair dismissal claim, please contact an AREEA employee relations consultant near you.

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